The Supreme Court Upholds The Constitutionality Of Import Certificates

Author:Ms Patricia Lopez Aufranc and Pablo J. Gayol
Profession:Marval O'Farrell & Mairal

In re "El Brujo" the Argentine Supreme Court of Justice upheld the non-automatic licensing system established by the Executive, but has not completely dismissed the possibility of a court waiving the requirement of the Import Certificate, if sufficient evidence of an actual damage to the importer is found to justify the declaration of unconstitutionality of the Import Certificate requirement in a specific case.

In 2004, Argentina introduced a non-automatic licensing procedure that created an Import Certificate for Textiles. An importer of a product subject to an Import Certificate cannot import the product without obtaining the Import Certificate prior to entering the product to Argentina. The Import Certificate for Textiles covered products in 29 tariff code positions. The Import Certificate for Textiles was soon followed by an Import Certificate for Domestic Appliances, in 2004, and an Import Certificate for Footwear and for Toys in 2005. As from today, Argentina has 18 different Import Certificates in place covering products in almost 650 tariff code positions.

The importers of products subject to Import Certificates face long delays, since the authorities may take months after the application is filed to grant the licenses, even if all the information and documents requested have been submitted. Moreover, in many cases, the authorities take no decision on the application. As more products become subject to Import Certificates and the delays in granting them increase, the Import Certificates became a pressing issue to a larger number of importers. Many importers filed legal actions to address this situation. Several strategies and courses of action were followed by importers to obtain authorization from the courts to import their products without an Import Certificate. The courts, almost unanimously, have sided with the importers and granted hundreds of injunctions allowing importers to import their products without Import Certificates.

Until now, the Supreme Court remained silent on this matter. However, recently the Supreme Court in re. "El Brujo" upheld the non-automatic licensing...

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